Federalism is now officially dead. Chief Justice Roberts declared today in his majority opinion in the PPACA ruling that the national government (I refuse from now on to call it the federal government) has the right to force individuals to purchase health insurance and to penalize them with a fine if they fail to comply. This supposed right of the national government somehow derives from its “taxing power”. Well, if the national government can now coerce me into purchasing something against my will and impose a penalty for my non-compliance in the form of a fine (now called a tax) then no limit now constrains the power of the national government.
In reality, I am probably late to the party in declaring the death of my beloved federalism. Power has been shifting from states, communities and families to Washington for the last 100 years. This shift occurs in fits and starts but always follows an inexorable path forward (or backward). Once powers move to this central authority they never move back. In this progression, however, today’s decision by the Supreme Court, marks such a profound shift that it is not overstating the case to say that we have reached the culmination, the death of federalism, the death of the idea that individual freedom and state sovereignty are more important than the national state, the death in short of any semblance of subsidiarity.
If you think I state my case too strongly read the words of Justice Anthony Kennedy in his dissenting opinion to today’s Supreme Court ruling, “The values that should have determined our course today are caution, minimalism, and the understanding that the federal government is one of limited powers,” Kennedy said. “But the court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.”
Can federalism be resuscitated?
All things are possible. I cling to the hope that we can return to the founding principles of our country and turn the tide. Unfortunately, we face a very strong tide. In order to return to a sensible approach to governance in this country we must (a) overcome the historical trend of this country toward centralization of power and (b) overcome the lack of formation of great swaths of our citizenry concerning principles of political philosophy especially as they pertain to the limitations of government and the rights and responsibility of individuals.
Don’t misunderstand me. I am not suggesting that government has no role in our lives. What I am saying is that government has forgotten that it derives its power from the people. And many of our fellow citizens have forgotten this as well. It will require a massive concerted effort from the people in order to wrest the power away from the national government that it has accumulated to itself. I hope We the People stand willing to engage in this effort.